By Conn Maciel Carey LLP’s COVID-19 Task Force

This morning, the US Supreme Court heard oral argument in National Federation of Independent Business v. Department of Labor and Ohio v. Dept. of Labor, the consolidated cases challenging the legality of OSHA’s COVID-19 Vaccination, Testing, and Face Coverings emergency temporary standard.  Specifically, the question before the Court today was whether the OSHA ETS should be stayed pending the merits adjudication pending before the US Court of Appeals for the Sixth Circuit.

Although scheduled for just one hour, the argument in this rare OSHA case to appear before the Supreme Court lasted a little more than two full hours.

If you were not able to listen live this morning, here is a link to an audio recording on C-SPAN.  And here is a link to the transcript of the argument.

The Department of Labor was represented at argument by the Solicitor General Elizabeth Prelogar.  The lawyers representing the petitioners that are seeking an emergency stay of OSHA’s vaccinate-or-test ETS were:

• Scott Keller from Lehotsky Keller LLP, representing National Federation of Independent Business and other industry associations; and
• Benjamin Flowers, the Solicitor General of Ohio, representing Ohio and other petitioner states.

The Ohio Solicitor General, arguing against OSHA’s vaccinate-or-test ETS, appeared remotely for the argument because he tested positive for COVID-19, somewhat ironically, pursuant to the Supreme Court’s own testing mandate for lawyers who would appear in-person to argue before the Court.

Our very high level takeaway from the argument today, and based on the nature of the questions the various Justices asked and what we know about their jurisprudence, it seemed that the conservative majority of the Court was leery of OSHA’s legal authority to mandate a broad national requirement for workers to be vaccinated or to undergo frequent testing without a more clearly express delegation of that intended standard-setting authority than what Congress had provided in the fifty year-old and somewhat vague OSH Act of 1970.  It’s not a certainty that the OSHA vaccinate-or-test ETS will be stayed (and later killed), but there is very reasonable potential that is the outcome of the case now fully submitted to the nation’s High Court.

We also anticipate that we will see a quicker decision than usual from the Court, likely even by Monday morning, when most of the elements of OSHA’s ETS are due to go into full effect (all of the requirements except for the testing of unvaccinated workers).  It is also possible that the Court very quickly issues a brief (i.e., a for only few days) administrative stay while it more carefully considers, debates and articulates its opinions about whether to stay the ETS pending the merits adjudication by the Sixth Circuit.

While it is always a little dangerous to try to predict what a Supreme Court Justice is going to decide based on the questions they ask, it does give at least some glimpse into how they view and frame the relevant issues in the case. And if you won’t hold it against us, we’ll try to do it anyway.  Read the tea leaves from their questioning today, here are some inferences we have drawn:

First, as expected, Justices Kagan, Sotomayor and Breyer, the three Justices appointed by Democratic presidents, seemed obviously to support the ETS, and their remarks throughout the argument were as much advocacy for the rule as they were questions for the attorneys arguing the case.  We can confidently predict that each of them will vote to maintain the ETS; i.e., no stay.  Here are some of the questions Justices Kagan, Sotomayor, and Breyer asked:

• This is the greatest public health danger our nation has faced in the last century. Still confronting thousands of people dying every day. Just stating facts.
• The vaccinate-or-test ETS is the policy that is most geared to stopping that.  There’s nothing else that will perform that function better than to strongly incentivize people to vaccinate themselves.
• There are all kinds of public health vs. economic cost tradeoffs that have to be made in a policy like this, so who should decide?  Should it be the agency that is full of experts and total political accountability (i.e., if people don’t like it, they’ll vote out this Administration), or should it be courts that decide?  We have no expertise.  We’re not elected.  We can’t be replaced.  Why should we displace OSHA’s judgement about vaccination policy?
• There is no vaccine-mandate here.  There’s a masking mandate, which is no different than other PPE that OSHA requires.
• Are you still really asking the Court to issue a Stay to stop this from going into effect today, or tomorrow, or Monday?  There were 750,000 new cases yesterday, which is 10x more than when OSHA issued this rule.  Hospitals are full, and as much as 90% of those being hospitalized are unvaccinated.  Public interest is one of the factors in a Stay analysis.  How could it be conceivably be in the public interest to stop enforcement of this rule?  I’m not asking if it’s an unprecedented use of OSHA’s authority, I’m asking how it could be in the public interest?

Then there were there Justices Alito and Gorsuch, both of whom are fairly predisposed to be skeptical of executive agency action, and both of whom are essentially guaranteed votes for a Stay of the ETS before the day began.  Note: one might have expected to include Justice Thomas in this category before the oral argument, but some of his questioning was a little surprising.  Here’s the types of questions (and commentary) we heard from Justices Gorsuch and Alito:

• I want to return to the question of who decides.  We all agree that the states have broad police power, and the federal government is limited by the Commerce Clause.  The major questions doctrine regulates the interaction between Congress and agencies.  Regulating the rules of the system, so that the appropriate party regulates the regulated community.  Is this a power that has been left to the agencies or one that the Congress should decide?
• Is the question here whether the ETS is necessary to protect the health of the general public, or whether it is necessary to protect just employees… or more precisely, to protect only those unvaccinated workers who voluntarily choose to be unvaccinated?
• We’re hearing so much talk about public health and the value of vaccines to the general public, but I want to make sure I understand the question that is before us.  Isn’t the only question whether there is a grave danger for unvaccinated workers?
• Is this action fundamentally different than anything OSHA has done before? Most OSHA regulations affect employees when they are on the job, but not away.  If you get vaccinated, that affects you everywhere, right?
• I’m not contesting the FDA’s conclusion that the vaccines are safe, but is it not the case that vaccines and medications have benefits and risks.  Some people who get vaccinated will suffer adverse consequences.  Has OSHA ever imposed a requirement that imposed extra risk?
• Is the testing option really a viable alternative to the vaccine-mandate in light of current testing capacity?

As noted above, we would have predicted that Justice Thomas would be in that category with Justices Alito and Gorsuch; i.e., a slam dunk vote in favor of a Stay of the ETS, but Justice Thomas, who rarely speaks at all during oral arguments, was the first to speak up, and throughout the argument asked questions that indicated something of recognition for the need for this rule and OSHA’s authority to issue it.  He could have just be playing a little devil’s advocate, but here are some of the remarks we heard from Justice Thomas today:

• The standard for an emergency rule includes rules that are necessary and proper, which sounds to be a broader concept than the petitioners are suggesting.
• Can a danger be so acute in general society that, when it is brought into the workplace can be regulated by its mere presence there, and the fact that the risk there is so acute?
• There has been some suggestion that the vaccinations are efficacious in preventing, to some degree, infection to others.  Can you talk about that?
• You suggested that the state has the police power.  Could the state of Ohio do what federal OSHA has done here?  There seems to be a suggestion that this is one or the other, all or nothing, that if the states have the power, then no other governmental body (e.g., OSHA) could also have that power.  Can you talk about that?

At the end of the day, despite what seemed to be surprising questions from Justice Thomas, we would still put odds on seeing him line up with his fellow conservative Justices in this case.

Our prediction at this point, then, is 3-3, leaving the fate of the ETS in the hands of the three other conservative Justices, Chief Justice Roberts and Justices Kavanaugh and Coney Barrett, who have become something of swing votes on the Court.  They were the three to whose questions and remarks we paid closest attention, and here is what we heard from them:

Chief Justice Roberts –

• Seems the executive branch is just going agency by agency issuing rules and requirements.  This agency will apply it to federal contractors.  This one for workers.  This one for healthcare workers, etc.  Why doesn’t Congress have a say in this?  It sounds like the sort of thing the states and Congress should be responding to, rather than agency by agency.  Rather than the Executive Branch.

Justice Kavanaugh –

• You’re relying on the Major Questions canon. When an agency wants to issue a major rule, it can’t rely on ambiguous statutory direction.  So when is something major enough?  We’ve applied it only 5 or 6 times in the last 40 years.  What should we look at to determine if this is the kind of rule, like the tobacco or benzene rules, that is a major question?  And if it is major enough, how do we sort out whether the delegation is appropriate?

Justice Coney Barrett –

• You would be hard pressed to say there are not some industries that do face a unique and grave risk (e.g., packed in on an assembly line).  Would you be contesting this ETS if it was targeted to specific industries, carved out young and healthy workers, and carved out outdoor industries, etc.?
• Would you make the same arguments if this was just about mandatory testing and masking?  What if it was just masking?
• In the context of an ETS, there is no opportunity for public notice and comment.  That is why for an ETS, the rule needs to meet a “necessary” standard.  How do you reconcile the requirement for meeting a necessary standard and the blunt approach of a broadly-applicable ETS?
• When does the emergency end?  New variants will emerge, this may well become endemic.  When does OSHA have to follow its conventional notice-and-comment rulemaking proceedings?

Those three were clearly not cheerleaders for the ETS, but were not as overtly hostile to it as Justices Alito and Gorsuch.  Trying to read between the lines, our takeaway is that we would not be surprised at all to see at least two of them (most likely Chief Justice Roberts, and then Kavanaugh) and perhaps all three, voting to take down the ETS.

Accordingly, if forced to predict, we would guess that the Court will reissue a Stay of OSHA’s vaccinate-or-test ETS in short order with a vote that looks like this:

• Sotomayor –   No stay
• Kagan –           No stay
• Breyer –          No stay
• Alito –              Stay
• Gorsuch –        Stay
• Thomas –         Stay
• Roberts –         Likely Stay (but could go either way)
• Kavanaugh –   Likely Stay (but could go either way
• Barrett –          Could go either way

Although not quite is revealing as the questions that the Justices were asking, the lawyers for the Parties did have a lot to say today, too.  Here are some of the notable arguments and responses provided by the Petitioners’ counsel and the Solicitor General on behalf of the Department of Labor:

Notable remarks from the Petitioners:

• We don’t contest that COVID-19 is a grave danger.
• “As soon as employers put out their plans, workers will quit.  That will ripple through the economy.”
• OSHA did not do an industry-by-industry analysis.  Even the 100 employee threshold was only about administrative capacity, not risk.
• We do not think OSHA could lawfully issue an economy-wide vaccine or testing requirement even under its normal (i.e., non-emergency) rulemaking authority.
• It’s not about the metrics about infection and health outcomes and economic impact.  If the Court determines the rule is an unlawful exercise of power, then it cannot be in the public interest.
• Congress should at least be clear in its delegation with respect to rules that would affect public health and cripple the economy.

Notable remarks from the Solicitor General (on behalf of the Dept. of Labor):

• Exposure to COVID-19 on the job is the biggest threat to workers in OSHA’s history.
• The fact that other agencies may also have authority to act, does not affect whether OSHA has this authority to act in this context.
• Petitioners are concerned about worker attrition, and OSHA looked at that, and analyzed that, and found that the concern about worker attrition was greatly overblown.  But that risk is why OSHA provided the two options – hard mandate or soft mandate – because employers know their workforce best and can decided which option will provide protection and minimize attrition.
• In the workplace, employees have the least amount of control of anywhere in their lives to control against close contact exposures.  The risk may be most grave in places where employees are packed in shoulder to shoulder, but that does not change that it is also a grave danger in any workplace environment where multiple people are present.
• Congress did specifically contemplate emergency situations like this and specifically empowered OSHA to take this kind of action to address them.  Immunization is also specifically referenced in the OSH Act.  It is inapposite that Congress would have done so and not intended for that to be an authority OSHA has.
• The OSH Act does not allow employers to neglect worker safety for workers who would desire, for whatever reason, to voluntarily assume risks to themselves.
• There is not a way for OSHA to avoid notice and comment indefinitely, which is why the estimates of lives saved and costs of the ETS are measured across six months only.

Kudos to the Solicitor General and the petitioners’ counsel on arguments well made, and to the clerks of the nine Supreme Court Justices who obviously worked hard over the holidays to prepare the Justices well for a pretty complex case.

It’s no slam dunk either way, which is why this will be another fun weekend thinking about OSHA’s ETS, as we brace for a decision from the Court at any moment, and likely by Monday.  As soon as we see the decision, we will digest it and share our analysis of the opinions, and what is next for the Biden Administration’s COVID-19 Action Plan to vaccinate the unvaccinated.

UPDATE – January 13, 2022

[BREAKING] Supreme Court Reinstitutes a Stay of OSHA’s Vaccinate-or-Test ETS